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Attorney-Client Privilege Versus Mandatory Reporting by Psychologists: Dilemma, Conflict, and Solution

NCJ Number
Journal of Forensic Psychology Practice Volume: 6 Issue: 4 Dated: 2006 Pages: 69-78
Joe W. Dixon Ph.D., J.D.; Kim Embleton Dixon Ph.D., MBA
Date Published
10 pages
This paper provides an overview of the legal and ethical responsibility for both psychologists and attorneys under mandatory child abuse reporting laws, with attention to the potential areas of conflict posed by the differing requirements for the two professions under these laws.
In the United States, psychologists and a number of other professionals likely to encounter evidence of crimes are required by law to report to authorities their suspicion that a crime has occurred (e.g., child or elder abuse); however, only two States make attorneys subject to the mandatory reporting of child abuse. When a psychologist is hired as an employee or a consultant to an attorney, the psychologist is regarded as a "nonlawyer assistant" under the American Bar Association's Model Rules of Professional Conduct (MRPC). Under the MRPC, attorneys must make reasonable efforts to ensure that the nonlawyer's "conduct is compatible with the professional obligations of the lawyer." There are no exceptions listed in the MRPC for breaching a client's confidence in order to report child abuse or any other past crimes of a client. On the other hand, under the MRPC, an attorney may not knowingly counsel or assist a client in conduct that is criminal or fraudulent. In all jurisdictions, an attorney cannot ethically or lawfully advise psychologists not to report child abuse. Once the psychologist believes with reasonable and good faith that child abuse has occurred, the mandatory reporting provisions of the law come into play. Ethical and legal conflicts can be avoided if both attorneys and the psychologists they hire inform clients who are considering psychological evaluations that any evidence of child abuse that emerges during the evaluation must be reported to the authorities by the psychologist. 14 references